Judicial review in porn charges MP case

A judicial review sought by former South Australian government minister Bernard Finnigan is underway in the Supreme Court, as part of the MP's bid to have his child pornography charges thrown out.

Finnigan arrived at the court with his QC Michael Abbott.

An Adelaide magistrate ruled last month there was a case for Finnigan to answer on six major indictable offences of obtaining access to child pornography, charges to which Finnigan pleaded not guilty.

His lawyers sought an urgent full court hearing to argue the magistrate erred in finding there was a case to answer.

Mr Abbott argued Magistrate Simon Smart made an invalid order for committal because he exceeded his jurisdiction by wrongly interpreting the section of legislation under which Finnigan is charged.

Mr Abbott earlier argued there was no identifiable victim in the case so it could not be proved the victim was under 14, therefore the aggravated features of the offences could not be determined.

"It was necessary for the magistrate to identify the elements of the aggravated offence. He did so in a way which neither the learned Solicitor-General nor us contend was the correct way," Mr Abbott told the latest hearing.

"We say the magistrate acted beyond his power. We say the offence as particularised by the magistrate is not an offence known to law."

"If we are right and this court in the course of deciding this application for a judicial review says we're right, there will be no proceedings in the District Court that are possible against this particular plaintiff. The proceedings would in their entirety be disposed of where they ought to have been disposed of, in the Magistrates Court."

Solicitor-General Martin Hinton QC opposed that argument.

"There are in fact many victims, they are the children abused and exploited by those that produce, those that disseminate, those that possess or intend to obtain access to child pornography," he said.

"We may never know their specific identity but they are in our submission the victims.

"What we have to show is that you knew at the time of taking the steps [to obtain access to child pornography] of the possibility that a person depicted or whose image or whose body part appeared in the child pornography could be under the age of 14, and nevertheless ran that risk. The aggravated offence in this case is the taking of steps with the necessary intent and with that knowledge.

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